The ALRC on judicial impartiality - and the momentum towards judicial appointments reform
Andrew Lynch
This is a post in a special series that AUSPUBLAW is featuring on the Australian Law Reform Commission’s report on Judicial Impartiality. This special series will be hosted across two weeks on AUSPUBLAW, and the full series can be accessed here.
12.08.2022
The Australian Law Reform Commission (ALRC) is to be commended for its searching and inclusive approach to the topic of judicial bias in the recently released report of its Inquiry into Judicial Impartiality (Inquiry). The ALRC has not shied away from specific structural dimensions of the Australian court system that go to the impartiality of its judges and the confidence that the public must be able to repose in them if the courts are to fulfil their constitutional function.
A striking example of this is the Report’s substantial discussion and unambiguous recommendations in respect of judicial appointments reform. This is a topic that some may not have anticipated as one to emerge from the review. In this post, I consider the inclusion of judicial appointments and the significance of the ALRC’s contribution at this particular time, coinciding with the return of Mark Dreyfus QC to the post of Commonwealth Attorney-General.
The ALRC and judicial appointments reform
Judicial appointments is an issue that has been addressed by the ALRC in other inquiries over its history, with recommendations for public selection criteria and the creation of an advisory commission to the Attorney-General so to increase the number of female judges made as far back as 1994. The most recent attention given to appointments by the ALRC was in its 2019 Inquiry into the family law system – which recommended the value of appointing judicial officers to the Family Court of Australia after some consideration of their experience, expertise and aptitude to hear cases in that jurisdiction. A wider comment was beyond the Terms of Reference for the 2019 Inquiry, but the ALRC did note the many submissions on this point and observed that ‘the Australian Government should consider more transparent processes for appointing judicial officers generally.’
With the Inquiry on Judicial Impartiality, the ALRC has been unhampered by a specific focus on a particular court, with its reference extending to all federal courts. With a clear line of sight to the issue of judicial appointments, it has taken its shot. Judicial appointments reform is discussed in Chapter 12 of the Report, addressing ‘institutional supports and safeguards’. The ALRC has justified the inclusion of substantial discussion on this topic, and also judicial education, by quoting the factor that then-Commonwealth Attorney-General, Christian Porter, said he was ‘having regard to’ when he established the Inquiry: ‘the importance of maintaining public confidence in the administration of justice for all Australians’. This opened up a broader scope for the Inquiry, and the ALRC rightly looked at how an individual is selected for judicial service in the first place as a threshold issue in respect of their impartiality and freedom from bias.
When the ALRC conducted its Inquiry, the Coalition government was appointing judges according to the traditional model. Under that approach, the Commonwealth government exercised an unfettered discretion when selecting individuals for the bench apart from the most minimal formal requirements as to eligibility. It was a process fundamentally defined by its opacity. As Sir Gerard Brennan remarked of appointments to federal courts in the last year of the Howard government: ‘The process for appointing judges is unstructured and the criteria for making appointments are not defined’.
The Report provides a compact survey of the arguments against that model, which is decidedly in decline internationally, and was abandoned over 15 years ago in respect of judicial appointments in England and Wales. While a more inclusive consultation process and the use of advisory panels to recommend individuals to the Minister had been initiated by the Rudd-Gillard Government in 2008, these were abandoned by Coalition Attorney-General George Brandis in 2013.
The ALRC recommendations prudently steer clear of the specifics of any alternative model but instead simply emphasise the relevant elements of the Latimer House principles agreed by Commonwealth nations in 2003. Principle IV asserts the importance of appointments ‘made on the basis of clearly defined criteria and by a publicly declared process’ for the independence of the judicial arm of government. In line with the full text of principle IV, the ALRC recommends:
Recommendation 7: The Australian Government should develop a more transparent process for appointing federal judicial officers [that at a minimum, requires appointment on merit involving a call for expressions of interest, publication of criteria for appointment, and a commitment to actively promoting diversity in the judiciary without compromising the principle of merit selection].
Judicial diversity and bias
The Report proceeds to consider the importance of a diverse judiciary as a means of overcoming entrenched and unconscious bias perpetuated by a basic sameness amongst those routinely appointed. Any discussion of judicial bias must grapple with the importance of a judiciary able to draw on the diverse professional and life experiences of its members in order to test assumptions that may go otherwise unchallenged in a homogenous grouping of judicial officers.
In their submission to the review, Associate Professor Andrew Higgins and Dr Inbar Levy, said that, ‘greater diversity ensures judges are exposed to a wider array of backgrounds, experiences and perspectives in their everyday workplaces and when deciding cases as a panel’. This idea was found across a number of other submissions and was also affirmed by surveys conducted by the ALRC of judges and lawyers. Of the results from the latter group, ‘increased diversity in judicial appointments had the second highest level of support in a list of reforms to improve public confidence in judicial impartiality… (behind more effective complaints procedures)’.
The point of judicial appointments reform must be to create a process that does not merely justify the selection of any particular individual, but also aims to enhance performance and community trust in the court system and the administration of justice generally. A commitment to a transparent appointments process that values diversity should meet both. The ‘merit’ of individuals selected for appointment is enhanced, not diminished, by seeking to draw from, as the ALRC said, ‘the widest possible pool of candidates with the appropriate skills and experience’. But diversity also benefits the institutional decision-making process that follows from a bench comprised in this way, as well as the standing it enjoys as a fair reflection of the community.
Before his own appointment to the High Court in 2008, Stephen Gageler endorsed an emphasis on diversity as follows:
Considerations of geography, gender and ethnicity all can, and should, legitimately weigh in the balance. Judges are not representatives of sectional interests within the community, but sectional interests within the community need to feel that the law administered by judges applies equally to them all. Representation within the judiciary avoids alienation.
Given the different benefits of judicial diversity – but namely the mitigation of individual biases that may afflict institutional decision-making and enhanced public confidence in the impartiality of the courts, the ALRC decided that ‘statistics on the diversity of the judiciary should be collected as a way to encourage reflection and measure progress’.
For several years now, the Australasian Institute of Judicial Administration has released annual statistics on the number of female judges serving in Australian courts. These have been helpful for researchers and illustrated the progress being in made in most jurisdictions. But gender is, as Gageler acknowledged, just one aspect of diversity that may be reported and there is a case for more systematic and prominent reporting of the composition of the federal judiciary. The annual statistics on the judiciary, judicial appointments and legal professions of England and Wales are an excellent example of what might be made available.
The ALRC accordingly recommended:
Recommendation 8: The Attorney-General of Australia should collect and report annually statistics on the diversity of the federal judiciary.
It also suggested that should a federal judicial commission be established as per Recommendation 5, then collection and publication of statistics on judicial diversity could be assumed as part of the Commission’s role.
What does the ALRC report add?
The ALRC’s treatment of these issues is concise and compelling. While it does not offer anything new to the topic of judicial appointments reform, that is not a criticism. Not only would that be asking too much in a report of this size and with so many dimensions of judicial bias to address, but, given the accumulated literature on judicial appointments reform, it is really too much to ask of anyone. After all, it is now almost half a century ago that Chief Justice Barwick announced, ‘the time has arrived in the development of this community and of its institutions when the privilege of the Executive Government in this area should at least be curtailed’.
What more can be added to all that has been said many times in the intervening years? The traditional practice – reinstated by Brandis without explanation after a brief period of reform – was so manifestly deficient when held against principles of accountability and transparency, and such an international outlier, that the case for change is thoroughly well-versed. It speaks volumes that the ALRC received only one submission offering a defence of that system and rejecting any need for change. That view came from the Samuel Griffith Society, which favoured merely ‘quiet consultation’ with a range of stakeholders. Interestingly, in 2020, then-Senator Amanda Stoker, on the Coalition government benches, gave an address to the Samuel Griffith Society proposing that it should be consulted about appointments and ‘serve as an important screening mechanism, aiding the government in being careful to appoint judges with a black-letter methodology’.
Acknowledging the broad consensus that the old practice of appointing judges (or indeed public office holders more generally) as a ‘gift of the executive’ is no longer tolerable, is not to deny the value of the ALRC’s attention to this issue. The addition of the ALRC to the voices that have been calling for reform is an important development and underscores just how untenable and indefensible the reinstated traditional practice has been. But additionally, it has made explicit the connection to concerns around judicial bias. By emphasising this traditional value with great clarity, the ALRC has made a substantial contribution to a field that has tended to focus on the more recent value of representativeness to boost public confidence.
The ALRC’s own discussion is supplemented not just by academic commentary, but also the interventions of the Law Council of Australia over the last 20 years, most recently with a detailed call for reform in its Policy Statement of June 2021. This stance is not unrelated to the Council’s position on the need for a Federal Judicial Commission to address complaints and concerns over the conduct of individual judges.
Attention on appointments certainly draws strength from flare-ups of controversy over the decisions of a small number of the federal judiciary. Additionally, the uninhibited use in recent years by Attorneys-General of their similarly unchecked power of appointments to the Australian Administrative Appeals Tribunal (AAT) has fuelled dissatisfaction and calls for reform and an end to political patronage.
A more positive consideration are the numerous appointments models now operating in the states and territories of Australia – all helpfully set out in the ALRC annexures to the Report. These provide a good example of the benefit of ‘laboratory federalism’, first articulated in 1932 by Justice Louis Brandeis of the US Supreme Court to refer to the value of experimentation within strongly analogous legal and cultural settings that lights the way for other states, or indeed the national government, to adopt a tried and tested model.
There are common and attractive elements across the various State models, that might be considered and taken up in an optimal system for the federal judiciary. It is telling that perhaps the most comprehensive approach is to be found in Queensland, developed in response to the controversy and judicial discord that erupted in the wake of Chief Justice Tim Carmody in 2014. Ideally, the Commonwealth should not require an incident of that kind to realise that an appointments process is a necessary protection not only to the quality of the courts but also the individuals put forward for appointment and indeed the government itself.
To put it simply, we are not short of reasons for reforming federal judicial appointments nor lacking models that might assist us to do so. The ALRC has merely confirmed both matters and drawn a bright line to the bedrock of judicial impartiality.
The Dreyfus approach
The ALRC delivered its Report on Judicial Impartiality to the Morrison government in early December. Many months later it has finally been tabled in a very different Parliament and with Labor’s Mark Dreyfus QC returned to the Attorney-General’s portfolio. Dreyfus was a consistent and effective critic of the Coalition’s wind back of the modest judicial appointment reforms that Labor had made when last in office, as well as the politicisation of appointments to the AAT. In the past fortnight, he demonstrated his commitment to these issues when he presented his first bill in the new government to ensure future appointments to the Australian Human Rights Commission are not simply hand-picked by the government and then announced – a practice that imperilled the international standing of the Australian Human Rights Commission.
The ALRC Report finds a very willing audience in the new Attorney-General. In June he instigated a broad consultation exercise regarding the upcoming High Court vacancy when Justice Patrick Keane retires in October. At the same time, he shared with the Australian Financial Review that:
Whether it’s the judiciary or the Human Rights Commission or tribunals like the AAT, I think we will ensure better appointments if we use a process that is transparent, accountable and based on merit.
Diversity was not omitted, with Dreyfus suggesting this will follow from use of a much wider exercise of consultation than that required by statute with the Attorneys-General of the States and Territories. In explaining why he was consulting with the judiciary, bar associations, law societies, academics and others in the legal profession, Dreyfus said, ‘we need to work towards a judiciary that is reflective of our Australian community, and seeking a wide spread of views is more likely to achieve that outcome.’
At the same time, advisory panels to guide the Minister’s power of appointment will return, with an early indication that different panels will be created to consider appointments for specific vacancies. As to who will serve on these, the Attorney-General has said:
I am not going to be specific about the identity of the people who would serve on those panels, other than to say we are looking for senior representatives of courts and tribunals and retired former holders of judicial office and tribunal positions. It will also include a senior official of the Attorney-General’s Department.
While the political environment in which the ALRC Report has finally come to light is decidedly more favourable for the adoption of its recommendations on judicial appointments reform than might have otherwise been the case, it is far from a redundant contribution. The Report’s very considered discussion of these issues undoubtedly assists the new government’s reform agenda on integrity in public appointments. And while the Report helpfully confirms the ‘minimum’ of good process requirements, in doing so, the ALRC has highlighted that there are in fact choices to be made in designing any model of judicial appointments that goes beyond the ‘gift of the executive’.
What model to drive reform?
With the change of government, the issue of judicial appointments is receiving necessary attention. But at the same time, the issue has become both much more interesting and challenging, since it is fair to ask what the best model is for achieving the goals that the new Attorney-General has put forward.
This invites reflection on whether it is really enough to reboot the earlier Labor reforms, given developments over the last decade. Included in this is a need to critically examine the settings for any appointments mechanism to be sure they will deliver a more diverse judiciary and its benefits.
In particular, the use of advisory panels can, if care is not taken regarding their composition, entrench the status quo rather than drive diversity. Gageler pithily warned: ‘Like begets like. Judges would tend to create their successors in their own images. The tendency would be for the pool of potential judicial candidates to be unduly narrowed.’ This has been a source of dissatisfaction with the processes in England and Wales following their introduction in 2005, which have disappointed some who anticipated a more rapid diversification of the judiciary. Paterson and Paterson, when discussing that jurisdiction a decade ago, were blunt in their criticism that the ‘dominant extent to which the senior judiciary are involved in the appointment of the senior judiciary is inappropriate’. Ongoing attention to this issue in the years since, just confirms that any move to a new appointment model for the federal judiciary needs careful consideration of local and international experience, supported by empirical evidence. The untrammelled discretion of the executive is not to be simply exchanged for a self-perpetuating judicial class.
Lastly, it is fair to ask what might be needed to secure a more sophisticated judicial appointments system from a future government that wishes to reclaim its traditional power over appointments. The informality of the changes introduced by Labor’s Attorney-General Robert McClelland was, in some ways, a strength. However, the process was not as transparent as it might have been and, as events showed, it was definitely vulnerable to a change in government. Legislative protection of any new appointments mechanism must be given real consideration.
These various elements ensure that going forward the debate will be more complex and difficult than continuing to repeat the well-worn arguments against the Commonwealth’s discretion in selecting persons for judicial office. But that the discussion appears, at last, to have moved to some higher ground is itself very welcome progress.
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Andrew Lynch is Dean at UNSW Law & Justice and a member of the Gilbert + Tobin Centre of Public Law.
Suggested citation: Andrew Lynch, ‘The ALRC on judicial impartiality - and the momentum towards judicial appointments reform’ on AUSPUBLAW (13 August 2022) <https://www.auspublaw.org/blog/2022/08/the-alrc-on-judicial-impartiality-and-the-momentum-towards-judicial-appointments-reform>